The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process

Director: Jacob van de Velden

Research Fellow: Justine Stefanelli

Project Consultant: Andrew Dickinson

Research Assistants:

Edward Ho

Aniket Mandevia

Floor Rombach

Daniel Vasbeck

Project Reference: JLS/2006/FPC/21- 30-CE-00914760055

Project Links:

Project background and description

To date, the focus in the EU has largely been on the enforcement of judgments in civil and commercial matters. Other effects of judgments, including the procedural effects of jugments, or more specifically, the (claim, issue and wider) preclusive effects of such judgments, are largely neglected. These effects merit closer attention with a view to their great practical importance in preventing the re-litigation of claims and issues that have already been decided by courts in other Member States. The Institute's study for the European Commission, which was successfully proposed in 2006 and completed in April 2008, balances this discussion and allows for the further development of mutual recognition in the European civil justice area.

The project examines the legal practice of the Member States both in relation to domestic and foreign judgments. The project questionnaire consists of four parts. Part I addresses the concept, form, structure and terminology of domestic judgments; evaluates whether and how courts decide and formulate their final determination and findings on issues of fact and law; determines what is the binding character of judgments; and identifies which judgments are considered capable of having preclusive effects. Part II analyses in detail what, if any, preclusive effects are attributed to judgments; what is the nature, legal basis, and rationale of these effects; whether preclusive effects extend to the claim and issues decided in the judgment; whether anything comparable to wider preclusive effects of judgments, which may involve the theory of abuse of process; who, besides the parties to the dispute, can be affected by those effects; how the effects are invoked before the court; and whether any exceptions apply. Part III focuses on the legal practice in the selected countries in relation to judgments within the Brussels/Lugano regime, insofar as applicable. Part IV concerns the practice of the same countries in relation to third state judgments.

The Member States covered by the study have been chosen on the basis of a functional comparative method, which seeks to include the major legal systems and the legal systems represented in the EU. The participating Member States include: France, Germany, Netherlands, Poland, Romania, Spain, Sweden and England & Wales. The study further aims to identify best practices globally by drawing lessons from other jurisdictions, as much as evaluating the legal practice in the Member States. Accordingly, the following non-EU countries have been included in the study: US and Switzerland. The analysis of Switzerland is further attractive for the purpose of providing an insight into the implementation in practice of the Lugano Convention.

The project establishes whether obstacles exist to the free movement of judgments in the European Community for purposes other than enforcement, i.e. for the prevention of re-litigation. It is appreciated that these oobstacles may (in turn) affect the proper functioning of the internal market, although the project will not involve an empirical analysis of such potential obstacles. Finally, the project evaluates whether such obstacles may be addressed through the development of EC-wide rules on res judicata and abuse of process.

A project questionnaire was sent to all member states in October 2007 after the first meeting of the project's advisory board on 19 September 2007 and a subsequent meeting in London on 4-5 October of the project's national rapporteurs.


The principle objectives of the project are to promote a better understanding of the Member State rules concerning the authority and effectiveness of judgments, and their impact on the Brussels/Lugano regimes for recognition and enforcement; to consider whether disparities between the Member State rules create any impediment to the functioning of the principle of mutual recognition; and to consider whether any EC-wide solution to the identified problems is desirable and viable. The findings of the Institute were presented to the European Commission in a report in April 2008.

A substantial advisory board and network of national rapporteurs have been developed for this project with whom the first round of meetings was held in September 2007, and a second round in early March 2008. All relevant aspects of the project will be available on the Institute's website.


Final Comparative Study

Full project description

Discussion paper